The
fact that an alleged elder abuse victim was competent at the time he gave
videotaped testimony is an inadequate foundation for admission under a special
hearsay exception enacted in 1999, the First District Court of Appeal ruled
yesterday.

In
an opinion certified for partial publication, Div. Three rejected a
constitutional challenge to the hearsay exception statute, Evidence Code Sec.
1380.

The
section permits admission of the statement of an unavailable alleged victim in
a prosecution for elder abuse if it was videotaped by a law enforcement
official prior to the death or disability of the victim, who must have been at
least 65 years of age or a dependent adult when the claimed violation
occurred. Corroborating evidence is required and there must be no evidence
that the prosecution was responsible for the unavailability of the witness.

The
law also specifies that the statement is admissible only if “[t]he party
offering the statement has made a showing of particularized guarantees of
trustworthiness regarding the statement, the statement was made under
circumstances which indicate its trustworthiness, and the statement was not the
result of promise, inducement, threat, or coercion.”

Alameda
Superior Court Judge Julie Conger permitted introduction of a videotape account
by Thomas Means of his relations with Louis Ray Watson, who was charged with
taking money from Means under the false pretence that he was performing
improvements on Means’ home. At the time of trial Means was suffering from
advanced dementia and could not testify.

Writing
for the appellate panel, Justice Stuart Pollak said Conger erred in finding
that the “particularized guarantees” portion of the law was satisfied by
evidence establishing Means was competent at the time his statement was
recorded by a district attorney investigator. Competency alone satisfied
neither the statutory requirements nor those of the Sixth Amendment, he said.

“Under
both section 1380 and Idaho v. Wright[(1990)
497 U.S. 805],” the justice explained, “the burden was on the prosecutor to
rebut the presumption that Means’s statements were untrustworthy by
demonstrating that ‘the declarant’s truthfulness is so clear from the
surrounding circumstances that the test of cross-examination would be of
marginal utility.’”

He
continued:

“Here,
the prosecutor failed to make any showing beyond competency....More is required
than the perception from viewing the videotape that the witness seems credible
and does not appear to be testifying falsely. While we note that in the main
the questions put to Means during the interview were not leading and agree that
there are no indications on the tape that he was lying, it cannot be said that
he was without any motive to stretch or twist the facts. At a minimum, Means
paid a significant amount for substandard work. Animosity, resentment or a
desire to shift responsibility to the other party would not be unusual under
such circumstances, and a criminal conviction might give rise to
restitution....These circumstances surrounding the making of the statements
that were videotaped hardly provide assurance of their trustworthiness. Neither
the prosecutor, the Attorney General nor the trial judge pointed to any other
circumstances indicating that Means’s recitation of events that occurred eight
months earlier was necessarily accurate, or that cross-examination was not
likely to have been of value.”

The
erroneous admission of the videotaped evidence required reversal of Watson’s
convictions of those counts to which it related, Pollak declared, but he
rejected the defendant’s claim the law was unconstitutional.

Pollak
said he was “not persuaded by the reasoning” of the Florida Supreme Court,
which invalidated a similar statue on constitutional grounds in Conner v. State (Fla. 1999) 748 So.2d 950.